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Contempt of court and how to avoid it

I have spent 12 years training journalists and others in media law and I, like many, thought contempt of court was a bit of a paper tiger.

We had had very few actions for contempt brought by the Attorney General over the years and those that had been were so blindingly blatant that anyone with a rudimentary knowledge of the law could have avoided them – the Leeds footballers, Bowyer and Woodgate contempt by the Sunday Mirror, for example.

But recently we have had a series of contempt actions, with more pending.

The Sun and Daily Mirror were prosecuted over reporting of the arrest of Chris Jefferies, landlord of Joanna Yeates – an innocent man ‘monstered’ by the tabloids.

The Daily Mail and The Sun were prosecuted for contempt for publishing a photograph online of a man holding a gun during his trial.

The Attorney General is due to decide whether to bring an action against a journalist who allegedly tweeted details of pornography found on Vincent Tabak’s computer which was ruled inadmissible as evidence at his trial for the murder of Joanna Yeates.

The Mail and the Mirror face a contempt action over reports of a trial of Levi Bellfield, killer of Milly Dowler

Now The Spectator awaits a decision from the AG after columnist Rod Liddle weighed in with commentary on the Stephen Lawrence murder trial which the jury were directed not to read.

I have written many, many times about the AG Dominic Grieve’s attitude to contempt and the fact that he has warned he will take action where there has been prejudicial reporting.

So, for those of you out there wondering what contempt is and how you might steer a path through it, here is a quick guide.

1. What is contempt?

The law that protects the judicial process. It covers many things from obedience to orders of the court to behaviour in the courtroom itself. But if you are in media then you worry about contempt by publication – ie putting something out there which might derail the judicial process.

2. When do I worry about contempt?

When proceeding are active. The old common law of contempt used a wooly phrase – proceedings ‘pending or imminent’ which was whatever a judge took it to mean – a week, a month, a year. The Contempt of Court Act 1981 swept this aside and created the concept of ‘active’ proceedings. Proceedings are active when someone has been arrested; a warrant has been issued; they have been orally charged or an information has been laid. If none of these things has happened then contempt evaporates as a problem – publish whatever you like.

3. OK, proceedings ARE active, what should I avoid

Publishing something which creates a substantial risk of serious prejudice or serious impediment to those proceedings.

4. What does that mean?

Well, that’s a little subjective, but case law has shown the following to be a problem:

*Photos or descriptions where identity is at issue – ie the defendant claims it was not him who committed the crime and the prosecution has eyewitnesses whose testimony has to be tested by way of an ID parade. They must rely on their memory of the offence, not a photo helpfully published by the media. This action cause the record fine for contempt (so far) £80,000 for the Sun and £20,000 for Kelvin MacKenzie as editor.

*Assumptions of guilt – in crime reports, police have arrested A man, not THE man.

*Previous convictions – not normally allowed in as evidence, so don’t go informing the jury of them.

*Blackening a defendant’s character – if the prosecution do it in front of the jury, that’s fine. Just don’t do it yourself as they await trial.

5. Does this mean a media blackout about a crime if proceedings are active?

No. The CCA 1981 was drafted in response to the Sunday Times coverage of the Thalidomide scandal, which had been found in contempt under the old common law. The ST took an appeal all the way to the European Court of Human Rights, which ruled that the common law contempt, as applied, was in breach of the ST’s right to freedom of speech. So the CCA 1981 includes a Section 5 defence of ‘discussion of public affairs’. So, for example, a euthanasia trial does not shut down all mention or discussion in the media of the issues of euthanasia. But such discussion should avoid direct commentary on the trial.

6. What other defences do I have?

Section 3 defence – you didn’t know and had no reason to suspect there were active proceedings. But you have to show you checked. So if you’re reporting a crime and the police fail to inform you, when asked, that someone has been arrested, then you have a defence.

Section 4 (1) defence – you can’t be in contempt of court if you are reporting court. As long as the judge has not exercised powers under Section 4 (2) ordering you to postpone reporting of some aspect of the trial.

That’s about all there is to it. I realise that when the Pack are covering a story it is sometimes hard to resist carrying the same stories as others and to outdo your rivals at any cost. However, I cannot emphasise enough the folly of doing so. Dominic Grieve takes this very seriously and he has shown he is prepared to act.

If you need further assistance in any of this, you can find my contact details on the contact page of this site.

22 thoughts on “Contempt of court and how to avoid it”

Think you may be in a very good niche for the future – the whole area of media law looks set to be fascinating for the foreseeable future. Contempt of court should be almost akin to perjury, but as you say, rarely is it implemented.

Are you asking because your are revising for an exam? If so, the question may relate to reporting restrictions of the Magistrates Courts Act 1980, and the so-called 10 points of Section 8, which supposedly restrict reports of preliminary hearings at Magistrates Court where the defendant is to be committed eventually for trial at Crown Court.

The above list does not relate to these restrictions, as reports of proceedings are usually protected from contempt by S4 (1) of the Contempt of Court Act 1981.

You miss out the most important bit: ALL of the above only applies to those who are *resident in the UK*.

The rest of the world – the other 98% of the internet – can, and will, tweet, blog, post, and publish anything they like (within the constraints of their own local laws of course). UK law on contempt (or anything else) does NOT trump the first amendment in the USA, just for starters.

It really is futile to try to regulate the internet with national laws like this. Canute Syndrome, I call it. There isn’t a little British internet for little British people. Pointless to restrict what comments Brits can make, when the rest of the world can make the same comments with impunity.

The big question. Are independent (non journalist) individuals on Facebook, Twitter, and so on “media” capable of problematic, contemptuous publication or not? Have there ever been any cases taken or threatened that are not related to mainstream media publications?

The last Attorney General said that he would come after bloggers and tweeters and one of them was threatened with contempt proceeds during the trial of Vincent Tabak, the man convicted of the murder of Johanna Yeates in Bristol.

At the weekend the Attorney General’s office put out a warning and infographic for social media users, clearly aimed at those posting about the Jo Cox case.

hey, sir – humble thank you for answering xxx that’s what I thought – and so re my other post – what if the server is abroad that I publish digital media upon? – and if I am liable to contempt proceedings then if reside/am in UK – what happens if I reside elsewhere and publish elsewhere then return to uk – or further – what if I am in another country but publish in uk digital or paper/tv/radio – whom is liable if at all or am I upon return? at what point is it the server owner whom is liable etc {hosts of any media}? – so many variables – but I hope you see what I am asking for – clear guideline for all occurrences/ how to avoid prosecution etc or face it – thank you again

also – it all begs the question – what stops me publishing a link to my friend whom is overseas and I have emailed the info to – they publish with impunity – I simply say here is a link to a view – digital media surely is impossible to police in end – its too easy to avoid authority unless authoritarian in end – is this where we going? do you think – its going to look silly either way??? and only the weak at ‘their game’ get caught? – like idiot made comment about bombing airport {not liable I know – but he wasn’t daesh was he} #farce? :)xxx

controlling printing presses at source or with censorship of wealth or power post print run, has been fairly successful – though since WWII – that control fragmented at subcultural level – the same of TV radio etc but more recent – however – internet age? it aint going to happen without ‘medieval measures’?

thanks for your reply – just seen it – too busy rattling more questions at you – I must stop :)))xxx thanks again 4 reply… most I assumed and the bit about returning here not been tested – interesting – not clear on one point – so if I tell a friend abroad – and they publish – I am liable? if traced? – and if I link to a contempt piece I am liable? that cant be right? really??? what if I say – here is a contempt of court piece I notice published abroad and place link on say twitter? – this is odd – in theory if bbc news catches a newspaper in shot when filming in usa and the headline is contempt – bbc is – even if not directly pointing at it? – the whole area is fascinating madness :)))

I overstand that retweeting is issue as this is republishing – but a cold url abroad? is contempt? like saying – hey – go to that bookstore – or buy that paper – and you can see a piece that is in contempt in uk – that’s illegal??????? wtfudge?